Derr Const. Co. v. City of Houston

• Citation: 846 S.W.2d 854
• Decision Date: 30 April 1992
• Docket Number: No. B14-91-00518-CV,B14-91-00518-CV
• Parties: DERR CONSTRUCTION COMPANY, Appellant, v. CITY OF HOUSTON, Blount Brothers Corporation, Gilbane/Mayan Joint Venture, Gilbane Building Company and Mayan Contractors, Inc., Appellees. (14th Dist.)
• Court: Court of Appeals of Texas

Page 854

846 S.W.2d 854

DERR CONSTRUCTION COMPANY, Appellant, v. CITY OF HOUSTON, Blount Brothers Corporation, Gilbane/Mayan

Joint Venture, Gilbane Building Company and Mayan

Contractors, Inc., Appellees.

No. B14-91-00518-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

April 30, 1992.

Rehearing Denied July 2, 1992.

M. David Frock, Dianne Zomper, Houston, for appellant.

Rebecca A. Van Deuren, Kenneth D. Kuykendahl, Charles E. Fitch, S. Bradley Todes and Sheryl Silkes Roper, Houston, for appellees.

Before PAUL PRESSLER, MURPHY and CANNON, JJ.

OPINION

MURPHY, Justice.

This is an appeal from summary judgments granted in favor of the appellees. Appellant brings one point of error alleging the trial court erred in granting the summary judgments in favor of the appellees. We affirm.

On April 28, 1986, an accident involving a crane occurred at the construction site of the George R. Brown Convention Center in Houston, Texas. The property upon which the convention center was being constructed was owned by the City of Houston (the City). The City contracted with Blount, Inc., successor in interest by merger to Blount Brothers Corporation (Blount) to act as the general contractor and with Gilbane/Mayan Joint Venture, Gilbane Building Company and Mayan Contractors, Inc. (Gilbane) to act as the construction administrator. Blount sub-contracted with Derr Construction Company (Derr). Derr was to perform steel erection on the project. On the day of the accident, one of Derr's employees was driving a Linkbelt 718 crane on one of the construction roadways on the site. As the crane was being driven over the roadway, the road collapsed into an underground cavity present under the road. The crane fell into the hidden cavity. The accident caused extensive damage to the crane and the boom attached to the crane. The crane was covered by an insurance policy provided by United States Fire Insurance Company (U.S. Fire). U.S. Fire paid Derr for the crane less the deductible owed by Derr under the terms of the policy.

After the accident, Derr sued the City, Blount and Gilbane for damages to the crane. Derr brought claims of negligence, ordinary and gross, and breach of contract. Derr sought money damages not covered by the insurance policy plus the deductible, and U.S. Fire asserted its subrogation rights to recover the amount paid Derr under the insurance policy. Blount and Gilbane-Mayan filed a joint motion for summary judgment and the City filed a motion for summary judgment. The motions for summary judgment alleged several grounds under which the appellees alleged they were entitled to judgment as a matter of law. On February 22, 1991, the trial court granted both motions for summary judgment and severed the counter-claims brought against Derr by the appellees. Appellant Derr appeals from the trial court's order granting summary judgments in favor of the appellees.

In its sole point of error, Derr contends the trial court erred in granting summary judgments in favor of the appellees.

A summary judgment is not entitled to the same deference given to a judgment following a trial on the merits. An appellate court does not view the evidence in the light most favorable to the judgment of the trial court when reviewing the granting of a summary judgment. At either the trial or the appellate level, the question is not simply whether the non-movant raised a material fact issue to defeat the motion for summary judgment, rather the movant must prove beyond question that it was entitled to judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828-29 (Tex.1970); Flowers v. United Ins. Co. of Am., 807 S.W.2d 783, 785 (Tex.App.--Houston [14th Dist.] 1991, no writ); TEX.R.CIV.P. 166a(c). If the movant fails to prove entitlement to judgment as a matter of law, the appellate court must remand the case for a trial on the merits. Flowers, 807 S.W.2d at 785. The standards for reviewing a summary judgment have been clearly mandated by the Texas Supreme Court:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubt resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

As grounds for their summary judgment motions, the appellees asserted: (1) the subcontract between Derr and Blount released the appellees from any liability for damage to the crane; (2) U.S. Fire cannot pursue the subrogation action because Derr released the appellees from any liability and Derr agreed to waive subrogations rights against the appellees, thus destroying the insurance company's subrogation rights; and (3) neither Derr nor U.S. Fire can maintain this suit because the subcontract required Derr to name the appellees as additional insureds in its insurance policies and it failed to do so. The City asserted these contractual defenses and also asserted governmental immunity. Since all of the appellees asserted contractual defenses in support of their motions for summary judgment it was necessary for them to prove at least one of the defenses as a matter of law in order to be entitled to summary judgment. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). In this case, the trial court's order granting the summary judgments did not specify the ground or grounds upon which it relied in making its determination. When a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced is meritorious. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79-80 (Tex.1989). Therefore, while indulging every reasonable inference in favor of the non-movant, Derr, we must determine if the appellees proved any of the asserted defenses as a matter of law.

The first ground for summary judgment asserted by all of the appellees is that a provision in a rider dated March 1, 1985, attached to the subcontract between Derr and Blount released all of the appellees from any liability for damage to the crane.

The provision in question states:

24. Paragraph [a] of Article IX of the printed form is hereby deleted and shall be replaced with the following:

(i) Subcontractor hereby assumes full responsibility and liability for the work to be performed hereunder and hereby releases, relinquishes and discharges and agrees to indemnify, protect and save harmless Contractor, the City, the Architect, Construction Administrator and any of their agents, servants and employees of and from all claims, demands and causes of action of every kind and character including the cost of defense thereof, for any injury to, including death of, persons (whether they be third persons, contractor, or employees of either of the parties hereto) and any loss of or damage to property (whether the same be that either of the parties hereto or of third parties) caused by or alleged to be caused, arising out of, or in connection with Subcontractor's work to be performed hereunder, or by the reason of the sale or manufacture of any material or equipment covered hereby, or the use thereof by the City after installation thereof, whether or not said claims, demands, and causes of action in whole or in part are covered by insurance hereinbefore. The Subcontractor further agrees to defend any suit or action covered by this Paragraph (a) brought against one or more of the Contractor, the City, the Architect or the Construction Administrator, their agents, servants, and employees for any alleged loss, damage, injury to, or death of, persons or property loss or patent infringement and to pay all damages, costs and expenses, including attorney's fees, arising in connection therewith or resulting therefrom. These obligation to indemnify and defend shall cover any cost of any kind including by (sic) not limited to in any way by any limitations of the amount or type of damages, compensation or benefits payable by Subcontractor under Worker's Compensation acts, disability acts or other employee benefit acts. Subcontractor expressly acknowledges that it has received from Contractor $100 and other fair, adequate and separate consideration in return for its agreement to provide indemnification as provided herein.

(ii) As a limitation on the foregoing Subparagraph (a)(i), Subcontractor shall have no duty to indemnify or defend Contractor for claims, demands, or causes of action not involving the negligence of the Subcontractor or those for whom the Subcontractor is responsible. With respect only to such claims, demands, or causes of action covered by this subparagraph (a)(ii), Contractor, provided Contractor or its employees were negligent, will owe the obligation to indemnify and to defend to Subcontractor.

This clause was changed at Derr's request by a change order dated April 17, 1985. The former provision put Derr at a distinct disadvantage as far as the indemnity portion of the clause was concerned. Therefore, Derr insisted that it be changed.

The appellees argued in their motions for summary judgment that this provision released appellees from any liability for damages to the crane. Derr contends that this provision is a mere indemnity clause, not an exculpatory clause, and therefore does not apply to the suit between Derr and the appellees. On appeal, the appellees allege that the provision is an exculpatory clause and an indemnity clause contained within the same paragraph, and the change order insisted upon by Derr altered the indemnity provision but left the exculpatory clause unaltered.

An exculpatory clause or...